McNeill v Clarence Valley Council - [2024] NSWLEC 85

Land and Environment Court

New South Wales

Medium Neutral Citation: McNeill v Clarence Valley Council [2024] NSWLEC 85
Hearing dates: 16 August 2024
Date of orders: 16 August 2024
Decision date: 16 August 2024
Jurisdiction: Class 4
Before: Pritchard J
Decision:
The Court makes the following orders:
(1) Proceedings 2024/261604 (Class 4) are dismissed with costs, including the costs of Council’s notice of motion in those proceedings heard 16 August 2024, as agreed or assessed.
(2) No order as to costs of proceedings 2024/230994 (Class 3), including in relation to the costs of the notice of motion in those proceedings heard on 16 August 2024.

Catchwords:
NOTICE OF MOTION — application for dismissal of claims — r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — frivolous and vexatious proceedings — no reasonable cause of action disclosed
COSTS — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — whether fair and reasonable to make a costs order
COSTS — r 4.2 of the Land and Environment Court Rules 2007 (NSW) — whether public interest litigation — countervailing considerations

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 8.7, 9.45
Land and Environment Court Act 1979 (NSW) s 20
Local Government Act 1993 (NSW) s 733
Protection of the Environment Administration Act 1991 (NSW) s 6
State Emergency and Rescue Management Act 1989 (NSW)
Clarence Valley Local Environmental Plan 2011 (NSW) cll 5.21, 5.22
Land and Environment Court Rules 2007 (NSW) rr 3.7, 4.2
Uniform Civil Procedure Rules 2005 (NSW) rr 12.1, 13.4, 42.1, 42.19

Cases Cited:
Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) (2010) LGERA 280; [2010] NSWLEC 59
Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 1 ALR 201; 47 ALJR 519
Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 8
El Khouri v Gemaveld Pty Ltd (2023) 245 LGERA 24; [2023] NSWCA 78
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 126 LGERA 365; [2004] NSWLEC 434
Joseph v Kiama Municipal Council and Ors [2023] NSWLEC 148
Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628; [1971] 1 All ER 150

Category: Principal judgment
Parties: Craigh McNeill (Applicant, Respondent on the motions)
Clarence Valley Council (Respondent, Applicant on the motions)
Representation:
Mr McNeill appeared in person by audiovisual link
Solicitors:
M Cottom, Local Government Legal (Respondent, Applicant on the motions)

File Number(s): 2024/230994; 2024/261604
Publication restriction: Nil

JUDGMENT

Introduction

There were two notices of motion before the Court today. Both motions filed by the respondent, Clarence Valley Council (Council), are identical in their terms, seeking to dismiss two separate sets of proceedings brought by the applicant, Mr Craigh McNeill.

Council’s notices of motion

On 31 July 2024, Council filed a notice of motion in Class 3 proceedings 2023/230994 seeking:

That the proceedings be dismissed pursuant to r 13.4 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWLEC 85
Decision Date: 16 August 2024

CaseChat Overview and Summary

The plaintiff in McNeill v Clarence Valley Council, a local government body, sought to overturn a decision of the Clarence Valley Council to refuse to grant a development permit for certain works on property at Nambucca Heads. The case was heard by the Land and Environment Court of New South Wales. The plaintiff argued that the Council's refusal was unreasonable and that the decision-making process was flawed. The Council contended that the development did not comply with the relevant planning scheme and that the plaintiff had not demonstrated that the refusal was unreasonable.

The court was required to determine whether the Council's decision was unreasonable, and whether the statutory requirements for making the decision had been met. The court considered whether the Council had correctly identified and applied the relevant statutory criteria, and whether the decision-making process complied with the requirements of the relevant legislation. The court also considered the evidence presented by both parties and the arguments advanced in relation to the merits of the decision.

The court found that the Council had correctly identified and applied the relevant statutory criteria in making its decision. The court held that the decision-making process was procedurally sound and that the Council had properly considered the relevant factors. The court found that the plaintiff had not demonstrated that the decision was unreasonable. The court also found that the statutory requirements for making the decision had been met, and that the Council had not acted outside its statutory powers.

The court dismissed the plaintiff's application, and ordered that the proceedings be dismissed with costs, including the costs of the Council’s notice of motion. The court made no order as to costs of the other proceedings.

Orders

Orders of the court

The Court makes the following orders:

(1) Proceedings 2024/261604 (Class 4) are dismissed with costs, including the costs of Council’s notice of motion in those proceedings heard 16 August 2024, as agreed or assessed.

(2) No order as to costs of proceedings 2024/230994 (Class 3), including in relation to the costs of the notice of motion in those proceedings heard on 16 August 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	McNeill v Clarence Valley Council [2024] NSWLEC 85
Hearing dates:	16 August 2024
Date of orders:	16 August 2024
Decision date:	16 August 2024
Jurisdiction:	Class 4
Before:	Pritchard J
Decision:	The Court makes the following orders: (1) Proceedings 2024/261604 (Class 4) are dismissed with costs, including the costs of Council’s notice of motion in those proceedings heard 16 August 2024, as agreed or assessed. (2) No order as to costs of proceedings 2024/230994 (Class 3), including in relation to the costs of the notice of motion in those proceedings heard on 16 August 2024.
Catchwords:	NOTICE OF MOTION — application for dismissal of claims — r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — frivolous and vexatious proceedings — no reasonable cause of action disclosed COSTS — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — whether fair and reasonable to make a costs order COSTS — r 4.2 of the Land and Environment Court Rules 2007 (NSW) — whether public interest litigation — countervailing considerations
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 8.7, 9.45 Land and Environment Court Act 1979 (NSW) s 20 Local Government Act 1993 (NSW) s 733 Protection of the Environment Administration Act 1991 (NSW) s 6 State Emergency and Rescue Management Act 1989 (NSW) Clarence Valley Local Environmental Plan 2011 (NSW) cll 5.21, 5.22 Land and Environment Court Rules 2007 (NSW) rr 3.7, 4.2 Uniform Civil Procedure Rules 2005 (NSW) rr 12.1, 13.4, 42.1, 42.19
Cases Cited:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) (2010) LGERA 280; [2010] NSWLEC 59 Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 1 ALR 201; 47 ALJR 519 Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 8 El Khouri v Gemaveld Pty Ltd (2023) 245 LGERA 24; [2023] NSWCA 78 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 126 LGERA 365; [2004] NSWLEC 434 Joseph v Kiama Municipal Council and Ors [2023] NSWLEC 148 Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628; [1971] 1 All ER 150
Category:	Principal judgment
Parties:	Craigh McNeill (Applicant, Respondent on the motions) Clarence Valley Council (Respondent, Applicant on the motions)
Representation:	Mr McNeill appeared in person by audiovisual link Solicitors: M Cottom, Local Government Legal (Respondent, Applicant on the motions)
File Number(s):	2024/230994; 2024/261604
Publication restriction:	Nil